Cauthen v. United States
Cauthen v. United States
Opinion of the Court
On March 15, 1989, at approximately 2:00 a.m., the police received a call from an unknown citizen stating that three or four individuals were selling drugs at the corner of Fourteenth and Buchanan Streets, N.W. No additional description of the individuals was given. Within a period of time unclear in the record but which the government
The trial judge found — and appellant does not dispute — that if the police acted properly before taking hold of appellant and the bag, the Fourth Amendment was not violated because appellant either abandoned the bag at that point or consented to a search of its contents. The court further concluded that the police, on the basis of the telephone call and their own observations, had reasonable suspicion justifying the seizure of appellant and the bag. We are compelled to reverse.
I.
We begin with the relevant legal principles undisputed by the parties. To justify an investigative detention or seizure under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981). As the Supreme Court recently explained, “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the ‘totality of circumstances’ that must be taken into account when evaluating whether there is reasonable suspicion.” Alabama v. White, — U.S. -, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990), quoting Cortez, 449 U.S. at 417, 101 S.Ct. at 694. These factors (the content of the information and its degree of reliability) reflect the criteria the Court traditionally has employed in evaluating anonymous tips as a basis for finding probable cause, viz., the informant’s “veracity,” “reliability,” and “basis of knowledge.” In White, the Court confirmed its earlier holding in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), that these factors “remain ‘highly relevant in determining the value of [the informant’s] report,’ ” White, 110 S.Ct. at 2415, and applied them to the lesser showing required for reasonable suspicion. In addition to knowledge of the informant himself, “corroboration of details of an informant’s tip by independent police work,” Gates, 462 U.S. at 241, 103 S.Ct. at 2333, can provide a substantial basis for crediting the informant’s statement. Goldston v. United States, 562 A.2d 96, 100 (D.C. 1989).
On appeal, this court makes an independent determination of whether there was reasonable suspicion, Brown v. United States, 590 A.2d 1008, 1020 (D.C. 1991) (probable cause), although in doing so “we give deference to the [trial] court’s findings of fact as to the circumstances surrounding the appellant’s encounter with the police.” Giles v. United States, 400 A.2d 1051, 1054 (D.C. 1979). The facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court’s ruling. Nixon v. United States, 402 A.2d 816, 819 (D.C. 1979).
II.
Our task, then, in this case is to apply a “totality of the circumstances approach ... taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work.” White, 110 S.Ct. at 2416. We begin with the tip itself and ask what the police knew about its reliability and content — its quality and quantity. The trial judge found that the police went to
The judge made no express finding that the caller lived in the area and had personally seen the drug activity she reported, perhaps because Officer Morgan’s statement quoted above was hearsay several times removed, and elsewhere he testified only that Hawkins had told him the station clerk had received a call “that there were three or four subjects selling drugs on the corner of 14th and Buchanan Streets, N.W.” Also, the caller in this case does not compare favorably with the citizen in Allen, supra.
The tip stated that three or four persons were presently at Fourteenth and Buchanan Streets selling drugs. Other than describing the number of participants, it gave no physical description of the suspects by sex, race, size, clothing or any other distinguishing feature;
These facts do not suffice on this record. In their testimony the police officers acknowledged that a bus and taxi cab stop, a convenience store, and a twenty-four-hour gas station were located at or near the intersection and that bus service along that route continued late into the night. Moreover, as the police drove toward the intersection “there were other people throughout the block ... on the west side of the street on the 14th Street corridor.” In these circumstances, the lack of specificity in the tip leaves too much uncertainty whether the persons the police saw at the corner were the same ones the caller had identified more than a quarter of an hour earlier.
The government further argues that any uncertainty about appellant’s involvement in selling drugs — bearing in mind that only reasonable suspicion is needed — was overcome by his behavior in abruptly walking away and then stopping and depositing his bag when the police pulled up in their marked vehicles. It is basic that independent police observation of suspicious conduct can offer confirmatory support for a tip that otherwise would be inadequate. See Lawson v. United States, supra. We conclude, however, that the government’s reliance on evidence of “flight” in this case is foreclosed by this court’s en banc decision in Smith v. United States, 558 A.2d 312 (D.C. 1989). In Smith the court recognized that “flight from authority — implying consciousness of guilt — may be considered among other factors justifying a Terry seizure.” 558 A.2d at 319 (quoting United States v. Johnson, 496 A.2d 592, 597 (D.C. 1985)). However, the en banc majority held, such use of flight presupposes a finding that “the manner of flight suggests consciousness of guilt rather than a mere desire not to interact with the police.... For flight to suggest consciousness of guilt — a mentality other than a legitimate desire to avoid the police — that flight not only must be very clearly in response to a show of authority but also must be carried out at such a rate of speed, or in such an erratic or evasive manner that a guilty conscience is the most reasonable explanation.” 558 A.2d at 319 (emphasis added) (separate majority opinion by Judge Fer-ren).
Thus, the fact that in this case the individuals, including appellant, clearly knew that police were present does not satisfy the Smith test unless appellant’s reaction was in the manner Smith requires. It was not. As in Smith, appellant did not “bolt or run” from the scene, id. at 317, but walked away at a fast pace.
All three judges on this division believe that this holding of Smith may be too inflexible and even in tension with the broader holding of the lead majority opinion in Smith by Judge Newman. See 558 A.2d at 316. But a division may not ignore either majority statement of Smith’s holding. Nor may we circumvent it by concluding that appellant’s actions in suddenly stopping and placing the tote bag on the ground amounted to the additional “erratic
Finally, we consider the application to this case of Alabama v. White, supra, the Supreme Court’s most recent discussion on this subject, on which appellant heavily relies. Appellant argues that the anonymous tip was inadequate under White because it contained no predictions as to anyone’s future behavior, reciting only “conditions existing at the time of the tip,” i.e., that drug sellers were at work at Fourteenth and Buchanan Streets. White, 110 S.Ct. at 2417 (quoting Illinois v. Gates, 462 U.S. at 245, 103 S.Ct. at 2335). It is true that in White, as in Gates, the Court deemed important the anonymous caller’s “ability to predict [the defendant’s] future behavior, because it demonstrated inside information — a special familiarity with [the defendant’s] affairs.” 110 S.Ct. at 2417 (emphasis in original). The Court contrasted this with a tip reporting merely that a particular car would be found in front of a building, a condition presumably existing at the time of the call and which anyone could have “predicted.” Id. Appellant argues that the tip here does not differ materially from the preceding example and suffers the same deficiency of information revealing inside knowledge.
White is not directly in point because the government does not rely here on the caller’s “insider” status to confirm her basis of knowledge; rather it characterizes her as an eyewitness informant, and we have conceded some merit to that position. White establishes no mandatory condition that a tip predict future activity to be reliable, see Brown, supra, at 1023 (under White, “accurate prediction of future events” has no “talismanic quality”), but stresses the decisiveness of such information where otherwise there is nothing from which a court can “conclude that [the caller] is either honest or his information reliable.” White, 110 S.Ct. at 2415, quoting Gates, 462 U.S. at 227, 103 S.Ct. at 2326. Nevertheless, White does shed light on the reasonableness of the seizure in this case, and offers little help to the government’s position. In White the tip supplied “a range of details” about “future actions of third parties ordinarily not easily predicted,” and the police verified “significant aspects” of those predictions. Even so, in upholding the stop of the defendant the Court conceded that “it is a close case.” Id. 110 S.Ct. at 2417. White thus reaffirms that the standard of “some minimal level of objective justification to validate [a] detention or seizure,” INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984), is not bare of content. In the present case the call to the police furnished no details which they could confirm fifteen minutes later with any reasonable expectation that appellant was one of the persons reported selling drugs. In White’s words, by that time there remained no “significant aspects” of the tip which could be confirmed to buttress its reliability.
The judgment of conviction is, accordingly,
Reversed.
. In that case we observed: "Although Officer Simms did not know [the caller’s] name, he had spoken with her on several prior occasions, recognized her voice, knew approximately where she lived, and also knew that she was active in her community’s campaign against drug traffic. Information she had given the police in the past had frequently resulted in the seizure of narcotics." 496 A.2d at 1049.
. Compare, e.g., Offutt v. United States, 534 A.2d 936 (D.C. 1987) (informant described suspect’s attire, gave his weight and height, and gave his location within building telling police where on his person drugs and gun were located); United States v. Mason, 450 A.2d 464 (D.C. 1982) (police were told where suspect was located, what he was wearing, and that he was carrying a black tote bag); Lawson v. United States, 360 A.2d 38 (D.C. 1976) (police were told suspect was at a phone booth, wearing blue jeans, and had a grey beard).
. Compare, e.g., United States v. Johnson, 540 A.2d 1090 (D.C. 1988) (tip provided location of suspect and said he was in an orange Volkswagen); Groves v. United States, 504 A.2d 602 (D.C. 1986) (tip gave location of suspect and said he was in green Pontiac with white vinyl top).
. The motions judge found that the police officers "responded to the complaint within ten to fifteen minutes.” The government agrees that if this was meant to denote the time it took the officers to reach the intersection, the record does not bear it out as the government acknowledges that the police arrived "within approximately 15 to 20 minutes.”
. E.g., Jefferson v. United States, 476 A.2d 685 (D.C. 1984) (police arrived on scene "about five minutes after receiving phone call”); Allen, 496 A.2d at 1049 (five minutes); Lawson, 360 A.2d at 39 (police arrived in less than three minutes); Mason, 450 A.2d at 465 (less than two minutes); United States v. Johnson, supra note 3 (less than
. Officer Morgan testified that he saw no one else on the northeast or southeast corner but "never got [as] far down” as the southwest corner.
. Nor does the fact that two other persons "took off around the corner.” i.e., apparently ran away, appear to distinguish this case from Smith, where a group of individuals similarly dispersed and were each pursued by police officers. 558 A.2d at 313.
. We express no opinion whether the tip as confirmed would have been sufficient had it reported possession of a dangerous weapon or a recent (or ongoing) crime of violence. This court has recognized that the reasonableness of police behavior may take into account such factors. E.g., United States v. Mason, supra; Risking v. United States, 381 A.2d 252, 256 (D.C. 1978).
Dissenting Opinion
dissenting:
Given our precedents and the posture of this case as presented to us, Judge Farrell’s opinion is not without considerable persuasive power. Nonetheless, I must register a dissent.
An examination of the record of this case suggests that, even accepting the analysis of Judge Ferren’s Smith concurrence, the manner of the appellant’s departure upon the arrival of the police officers was more than that of a person who “chooses to leave the scene, even at a brisk pace.” Smith v. United States, 558 A.2d at 319. It appears that so concerned was appellant with events and so heedless of his safety that, in departing from the scene while looking at the first squad car, he stepped directly into the street into the path of a second arriving squad car, which was forced to stop suddenly to avoid hitting appellant.
I might add that I harbor considerable doubt about the proper scope and application of the test expressed in Judge Ferren’s concurrence in Smith. The majority opinion in Smith, written by Judge Newman, signals that caution must be applied in dealing with departures upon the arrival of police, and sets forth the proposition that “[t]o provide grounds for suspicion, therefore, the circumstances of the suspect’s efforts to avoid the police must be such as permit[] a rational conclusion that flight indicated a consciousness of guilt.” 558 A.2d at 316 (quotations omitted).
It seems to me that there is a significant difference between a test that requires that the manner of departure “permit a rational conclusion that flight indicated a consciousness of guilt”
I think Judge Ferren’s articulation of the requisite standard that must be met before
. The government in its statement of facts summarizes the happening as follows: "Appellant was seen walking at a brisk pace across the street as if to avoid Officer Morgan's car [the first squad car to arrive] and to avoid being intercepted. Officer Hassen, in the second and as-yet-unobserved marked cruiser, saw appellant watching Officer Morgan’s car as he tried to cross the street in front of the cruiser occupied by Officers Nauheimer and Hassen. Officer Hassen stopped the car abruptly.”
The trial court’s opinion recited the facts as follows: "As Officer Morgan’s car turned the corner, the Defendant, seeing that it was a police car, walked quickly from the sidewalk behind Officer Morgan’s car and in front of Officer Nauheimer’s car. Officer Nauheimer brought his automobile to a sudden stop.”
. The trial court, without making at that point any reference to the near-accident, stated that "when the defendant fled the scene, he clearly demonstrated a consciousness of guilt.” The comment was made in the process of distinguishing the Smith case, which the trial court
. As the majority opinion here notes, ”[t]he facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court’s ruling. Nixon v. United States, 402 A.2d 816, 819 (D.C. 1979).”
. Earlier in the discussion, the majority opinion had recognized "as a general proposition that flight from authority — implying consciousness of guilt — may be considered among other factors justifying a Terry seizure.” 558 A.2d at 316, quoting United States v. Johnson, 496 A.2d 592, 597 (D.C. 1985).
. In truth, strictly viewed, this whole discussion was unnecessary to the holding, since the underlying assumption seemed to be that the departure at the brisk rate was meaningless if Smith did not in fact know that the men who had just arrived were police officers. The major focus of the disagreement between the majority and the dissent was whether the police officers could reasonably think that Smith knew of their presence.
. I do not here inquire into any issues about the formulation or application of this particular test.
. The officers were in street clothes, but wore jackets with "Police" embossed on both front and back.
Concurring Opinion
concurring:
When the police arrived at the intersection in northwest Washington where they effected a Terry-stop
Upon the arrival of the police, appellant, who was one of several persons there, walked away at a brisk pace. This court stated in Smith v. United, States, 558 A.2d 312, 319 (D.C. 1989) (en banc), that “[f]or flight to suggest consciousness of guilt ... that flight ... must be carried out at such a rate of speed ... or in such an erratic or evasive manner that a guilty conscience is the most reasonable explanation.” I agree that the reaction by appellant to the police arrival did not meet the strict Smith standard.
I share with the other members of this panel what the dissent characterizes as “considerable doubt about the proper scope and application of the test” enunciated by the concurring opinion adopted by the majority in Smith. I also agree that the Supreme Court’s recent decision in California v. Hodari D., — U.S. -, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), may cast further doubt upon the '"correctness of the standard in Smith. Nevertheless, this decision is the law presently and this division is bound by it. See M.A.P. v. Ryan, 285 A.2d 310 .(D.C. 1971).
Therefore, I concur in the holding that under the particular circumstances here the Terry stop was not valid and the judgment of conviction must be reversed.
. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. I am not persuaded that appellant’s manner of departure, walking away from one police car and into the street with apparent disregard for oncoming traffic so as to step in front of an approaching police car, is so erratic or evasive that a guilty conscience is the most reasonable explanation of appellant’s behavior here.
Reference
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- Leroy CAUTHEN, Appellant, v. UNITED STATES, Appellee
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